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ROBERT GARTNER v. COMMONWEALTH PENNSYLVANIA (12/16/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 16, 1983.

ROBERT GARTNER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Appeal from the Order of the Pennsylvania Board of Probation and Parole, dated May 5, 1983.

COUNSEL

Ron Turo, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 79 Pa. Commw. Page 142]

Robert Gartner, the petitioner and parolee, has appealed from denial of administrative relief following revocation of his parole by the Pennsylvania Board of Probation and Parole. His motion for summary judgment*fn1 is presently before this court and raises the following questions: (1) Did the board erroneously admit hearsay evidence over timely objection in denial of Gartner's right to confront witnesses? (2) Did the board place Gartner in double jeopardy by finding

[ 79 Pa. Commw. Page 143]

    that his possession of weapons violated two separate parole conditions?

Gartner had been incarcerated for five years, serving a five-to twelve-year sentence in the State Correctional Institution at Camp Hill, and was paroled on March 30, 1979. On March 30, 1983, the board ordered Gartner recommitted for twenty-four months backtime as a technical parole violator of four general and one special condition of his parole.*fn2

Gartner claims that the evidence introduced at the revocation hearing consisted entirely of hearsay, and that his counsel timely objected. Specifically, Gartner claims that his constitutional*fn3 and statutory*fn4 rights to confront and cross-examine witnesses were violated because the parole agent who filed the charges was not

[ 79 Pa. Commw. Page 144]

    present at the hearing; rather, Parole Supervisor Comiskey read the agent's affidavit into evidence.

A careful review of the record reveals that, contrary to Gartner's allegations, his counsel did not timely object to the parole supervisor reading the affidavit of Agent Richardson into evidence. In fact, Gartner's counsel stated on the record that he had no objection to the format of the presentation of the evidence.*fn5

Gartner's reliance on Razderk v. Pennsylvania Board of Probation and Parole, 76 Pa. Commonwealth Ct. 176, 463 A.2d 111 (1983), is misplaced because there we held only that technical incorrectness of counsel's objection to hearsay (lack of specificity) is not fatal to the parolee's fundamental right to confront and cross-examine witnesses. Razderk did not disturb the well established rule that confrontation rights can be waived, and if no objection is voiced to the introduction of hearsay evidence at a revocation hearing, a parolee cannot later challenge its admission. Heckrote v. Pennsylvania Board of Probation and Parole, 77 Pa. Commonwealth Ct. 131, 465 A.2d 118 (1983). "Indeed it is not the introduction of hearsay evidence at a revocation hearing which is error but the admission of hearsay over objection without a finding

[ 79 Pa. Commw. Page 145]

    of good cause." Sinwell v. Pennsylvania Board of Probation and Parole, 46 Pa. Commonwealth Ct. 429, 432, 406 A.2d 597, 599 (1979).

Gartner's counsel did object to certain hearsay statements and documents offered to prove violation of condition No. 5. The board's decision indicates that it relied upon the same evidence in finding that condition No. 5 had been violated. In that respect, the board erred.*fn6

There is substantial evidence of record, to which Gartner's counsel made no objection, supporting violations of general conditions No. 3, No. 7, and No. 9, and special condition No. 11, which alone provide ample justification for revocation of Gartner's parole. However, it is not clear that the board would recommit for the same amount of backtime in the absence of a valid finding of violation of condition No. 5.*fn7 Therefore, we will remand for further findings with regard to violation of condition No. 5, and possible recomputation required for that and the following reasons.

Gartner's second contention is that the board has placed him in double jeopardy by finding that his possession of weapons violated both general condition No. 9 and special condition No. 11.

A finding of a violation of a special condition enabled the board to aggregate time periods set forth in

[ 79 Pa. Commw. Page 146]

    the presumptive ranges of parole backtime at 37 Pa. Code § 75.3-75.4. Therefore, the board's finding that condition No. 11 was violated in addition to No. 9 and the other violations of general conditions increased the presumptive range from 6-18 months to 9-36 months.

Section 23 of the Pennsylvania Board of Parole Act*fn8 empowers the board to prescribe special conditions for particular parolees in addition to general rules governing the conduct and supervision of persons placed on parole. The general conditions are enumerated at 37 Pa. Code § 63.4 (reworded and renumbered as §§ 64.4(1)-(5)(iii)), and include No. 9 which, at all times pertinent hereto, provided: "Refrain from owning or possessing any firearm, deadly weapon or offensive weapon." Special condition No. 11 provides: "Possession or control of any weapon shall constitute a direct violation of parole."

Although the wording of the two conditions is slightly different, logically any violation of condition No. 9 would also be a violation of condition No. 11. "[A]ny weapon" inherently includes "any . . . offensive weapon";*fn9 therefore, there is no meaningful distinction

[ 79 Pa. Commw. Page 147]

    between the weapons referred to in the two conditions. Moreover, although the terms "control" and "possess" have different meanings, conceptually one cannot control a weapon without also possessing it. Thus, any violation of condition No. 11 would also be a violation of condition No. 9, obviating any need for imposing the special condition except to increase the parolee's possible recommitment time.

Research has disclosed no legal authority permitting or requiring this court to view that redundancy in the constitutional terms of double peopardy. The brief for petitioner Gartner has supplied no authority on point; it cites only precedents dealing with the application of the double jeopardy doctrine to criminal convictions.

However, in accordance with the judicial policy that courts should not reach constitutional questions if it can decide a case upon non-constitutional grounds, Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981), our conclusion is that the board's redundant imposition of special condition No. 11 necessarily means that the board has violated its own regulations in imposing an increased recommitment time on that basis. Although the board doubtless has authority to recommit for a period in excess of the presumptive ranges, the board's own regulations state that it must provide written justification for any deviation from the presumptive range. 37 Pa. Code § 75.3(c). The effect of imposing a special condition duplicative of a general condition here has been an increase of the possible recommitment time for the general condition violation, in the absence of any express justification of that deviation.

Therefore, the imposition of the redundant special condition No. 11, and the use of it as a foundation for an aggregation and extension of time periods, has been in violation of regulations.

[ 79 Pa. Commw. Page 148]

We therefore reverse and remand for recomputation of recommitment time on the basis that (1) no violation of condition No. 5 was established by substantial competent evidence, and (2) no special condition No. 11 validly existed or was violated.

Therefore, we conclude that the board abused its discretion by imposing special condition No. 11, and remand for recomputation of recommitment time in accordance with this opinion.

Order

Now, December 16, 1983, the order of the board, dated May 5, 1983, is reversed and remanded for recomputation of recommitment time on the basis that (1) no violation of condition No. 5 was established by substantial competent evidence, and (2) no special condition No. 11 validly existed or was violated.

Jurisdiction relinquished.

Disposition

Reversed. Case remanded for recomputation of recommitment time.


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